Archive/File: people/e/eichmann.adolf/transcripts/Judgment/Judgment-059
Last-Modified: 1999/05/27
187. We must now analyze the legal aspects of the Accused's
acts during the third stage, namely the stage of the Final
Solution.
. The Attorney General argued that the plan for the Final
Solution must be regarded as a criminal conspiracy for the
carrying out of the countless criminal acts connected with
the extermination of the Jews within the area of German
influence. The Accused participated in this criminal
conspiracy and, therefore, must be held liable ipso facto
for all the offences committed to bring about its
implementation, whether by a given action or a series of
given actions, in whatever geographic area or any area of
activities, whether committed with the active participation
of the Accused or not. The Attorney General based this
argument on the judgment of the Supreme Court in the case of
Kaiser (C.A. 88/58, Piskei Din 12, 1628) and especially on
the following passage (p. 1642):
"Sections 35, 36 (Criminal Code Ordinance, 1936) stand
by themselves in their definition of a specific crime.
We are bound by virtue of Section 4 of the Ordinance to
interpret it according to English law. In my opinion,
under English law, the offence of conspiracy connotes a
substantive rule of law, whereby the conspirators are
jointly liable, and this without having regard to the
general rules as to complicity. The conspirators are
not mutually responsible for their deeds because they
are partners to a crime within the meaning of Chapter V
of the Criminal Code Ordinance, but because of an
independent rule in the Law of Conspiracy."
We are of the opinion that the Kaiser case is to be
distinguished from the case before us, for two reasons:
(a) There, the Accused were charged in the indictment, inter
alia, also with specific offences of conspiracy, whilst in
the matter before us the Attorney General did not include in
the indictment a count of criminal conspiracy.
(b) As far as we could ascertain, in the Kaiser case the
offences against the Accused were misdemeanours, and the
punishment to which the perpetrators of the completed crimes
were liable did not exceed, or did not greatly exceed, the
punishment provided in Sections 35 and 36 of the Criminal
Code Ordinance, for a party in a conspiracy to commit
misdemeanours (two years imprisonment). It is to be noticed
that the Supreme Court in its dictum cites only Sections 35
and 36, and not Section 34, which deals with criminal
conspiracy for the commission of a crime. In the case of a
crime, punishments may vary considerably; in the case before
us, the difference is between a sentence of seven years
imprisonment for the offence of conspiracy, and the death
sentence for the crimes themselves.
188. We hesitate to accept the proposition put forward by
the Attorney General, as a general rule applicable in all
cases. We do not consider that a person who consents to the
perpetration of a criminal act or acts (for this is the
essence of the conspiracy), makes himself ipso facto liable,
without any additional ground of responsibility, as actual
perpetrator of all those acts. It is true - and thus it was
held in the case of Goldstein (C.A. 129/54, Piskei Din 10,
505) - that there exists a rule of substantive law, that
once a criminal conspiracy has been entered into, then each
of the conspirators becomes the agent of the others for the
purpose of the conspiracy, so that every act committed by
one of the conspirators, during the existence of the
conspiracy, is deemed to be the act of all the conspirators,
even if committed in their absence and without their
previous knowledge. But here the emphasis is on the words
"for the purpose of the conspiracy," and this ruling does
not apply to the completed crime. Thus we also interpret
the dictum appearing in an English judgment, in the case of
Sweetland (1958) 42 Cr. App. R., quoted by the Attorney
General:
"Every act done by a conspirator in furtherance of the
conspiracy is done on behalf of all the conspirators."
In our opinion, the words "for the purpose of proving
conspiracy" must also be added here. If we accepted
the Attorney General's argument, we would destroy the
statutory framework of Sections 23-25 of the Criminal
Code Ordinance, defining the responsibility of the
various partners to a crime. Such responsibility
demands, in every case mentioned in those sections,
something more than mere consent, such as soliciting,
aiding, abetting, and even in the extreme case of
common purpose, dealt with in Section 24, at least the
presence of the Accused at the commission of the crime.
189. We are also of the opinion that in general the sections
of our law are in conformity with the rules of English
Common Law, from which they are derived. For instance, in
the case of Bullock (1955) 1 All E.R. 15, the Court of
Appeal in England quotes these words from a previous
judgment - R.v. Lomas (1913) 9 Cr. A.R. 220):
"Mere knowledge that the principal intends to commit a
crime does not constitute an accessory before the
fact."
And the Court adds:
"Mere knowledge is not, of itself, enough; there must
be something further."
And so also in the case of Crofts (1944) K.B. 295, where a
man and a woman agreed together to commit suicide. The
woman committed suicide, but the man did not keep the
agreement. He was charged as an accessory to the crime of
murder. The court says there:
"This court is of opinion that mutual agreement to
commit suicide amounts to such a counselling,
procuring, inducing, advising or abetting as
constitutes the survivor an accessory before the fact,
even if he is not present when the other party to the
agreement commits suicide..."
that is to say, that the court found, in the circumstances,
that in the very act of agreement there was also an element
of mutual procuring and abetting to commit the offence. In
the language of our law, we should say that the man was
found guilty as an accomplice to the crime under Section
23(1)(b), (c) or (d), and not because of the mere fact of
the agreement made with the woman, which, in English law, is
considered a criminal conspiracy.
In Russell on Crime, 11th edition, vol. 1, pp. 146-147, it
is explained that a person may be convicted as an accomplice
also by reason of "constructive presence" during the act,
but on condition that he participates in the act by aiding,
abetting or even by encouraging the principal offender,
whilst the latter carries out his criminal intent. Here,
too, we see no deviation from the law embodied in our
Sections 23-25.
190. Although we did not accept the Attorney General's
argument as put forward by him in his summing up, we are of
the opinion that his general approach is correct, viz. that
all the acts perpetrated during the implementation of the
Final Solution of the Jewish Question are to be regarded as
one single whole, and the Accused's criminal responsibility
is to be decided upon accordingly. In our opinion, this is
to be concluded not from the law of criminal conspiracy, but
from the very nature of the "Final Solution," as being a
crime against the Jewish People, in accordance with the
legal definition of that crime.
Elsewhere in this judgment we have already explained that,
when drafting the definition of the Crime against the Jewish
People, our legislator received his inspiration from the
Convention for the Prevention of the Crime of Genocide.
What is it that endows this crime with its special character
in the criminal law of a state which adopts in its domestic
legislation the definition of the crime of genocide? The
answer is: the general sum total form which this crime is
liable to take. This form is already indicated by the
definition of the criminal intention necessary in this
crime, which is general and total: the extermination of
members of a group as such, i.e., a whole people or part of
a people. As the Supreme Court said in the case of Pel
(C.A. 119/51, Piskei Din 6, pp. 489, 502):
"By Section 1 of the Nazis and Nazi Collaborators
(Punishment) Law, 5710-1950, a person may also be found
guilty of an offence which he in fact committed against
specific persons, if the offence against those persons
was committed as a result of an intent to harm the
group, and the act which was committed by the offender
against those persons was a kind of `part performance'
of his malicious intent against the whole group, be it
the Jewish People or any other part of the civilian
population."
But the distinction does not lie only between the intention
required in the crime of genocide and in the individual
crimes of homicide perpetrated during the commission of that
crime; but also the criminal act itself ( actus reus) of
genocide is different in its nature from the sum total of
all the murders of individuals and the other crimes
perpetrated during its execution. The people, in its
entirety or in part, is the victim of the extermination
which befalls it through the extermination of its sons and
daughters.
191. The comprehensive nature of the crime against the
Jewish People flows from the language of the definition in
Section 1(b) of our Law; not only is the criminal intention,
as required by the definition, an intention to exterminate
directed against the Jewish People as such, but also the
criminal act is defined in words which clearly connote the
essence of the crime as an attack upon a group of people as
such. It says there, "the killing of Jews," "causing
serious harm to Jews," etc. - all this is in undetermined
numbers, in complete contradistinction to the definitions of
the usual crimes against the body, which are always referred
to as attacks upon a person as an individual.

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